I spent much of yesterday conducting interviews with the media about the situation in Libya. One of the questions I was repeatedly asked concerned the scope of the UN Security Council Resolution 1973 which authorises the use of force in Libya. How far does the resolution permit the coalition now acting in Libya to go? What are the objectives of the coalition military action? Does it permit the targeting of Colonel Gaddafi? The objectives set out by the resolution seem to me to broader than what is commonly thought. Para. 4 which authorises the use of all necessary means (short of an occupation force) is not just about protecting civilians but also, importantly, about protecting civilian populated areas under threat of attack. In other words, that paragraph authorises the use of force to prevent attacks on towns and cities, whether those attacks are directed at civilians or even at what would be legitimate military targets. My reading of the resolution is that it is really be about stopping Gaddafi’s forces from winning the civil war in Libya. So the resolution seems to be more than what the advocates of the responsibility to protect doctrine would suggest. This is not just about stopping international crimes it is about the restoration of peace, something closer to the original design of the Council (except that it is an internal conflict, which was not in the original design). What sort of peace though?

On the question of targetting Gaddafi, there appears to be a division of opinion among senior politicians and the senior General in the UK. The British Prime Minister David Cameron and the UK’s Chief of Defence Staff, General Sir David Richards have indicated that targeting Gaddifi personally was not allowed but the Defence Secretary and the Foreign Secretary have not ruled this out (see here). In my view, para. 4 of Res 1973 does not prohibit the targeting of Gaddafi and authorises it where this is deemed necessary to protect civilians and civilian populated areas. This view is also shared by other international lawyers interviewed for this Guardian article:

Philippe Sands, professor of law at University College London, believes the Libyan leader is at personal risk.

“The authorisation of ‘all necessary measures’ is broad and appears to allow the targeting of Gaddafi and others who act to put civilians ‘under threat of attack’, words that go beyond the need to establish a connection with actual attacks,” he wrote in the Guardian last Friday.

Malcolm Shaw, professor of international law at Leicester University, said: “Anything that supports Libyan jets – including the military command structure, airfields and anti-aircraft batteries – would be legitimate.”

But, he cautioned, not all Libyan government sites could be hit: “I wouldn’t think that blowing up the finance ministry in Tripoli would be authorised.”

. . . Ryszard Piotrowicz, professor of international law at Aberystwyth University, agreed that the UN resolution appears to sanction attacks on Gaddafi. He told The Guardian: “The [attorney general’s] note fails to clarify the extent to which force might be used to protect civilians. Targeted attacks on senior Libyan officials might be justified if this is the only way to stop attacks on civilians. That would include an attack on Colonel Gaddafi himself. The government is acting prudently in not clarifying this now because to do so might limit its freedom of action later, or reveal just how far it is prepared to go.”

If it can be shown that targeting Gaddafi is the only way of stopping a particular attack or attacks then it is clear that the such an act is necessary. But should “necessary” when used in the context of “all necessary means” be interpreted as meaning “essential” or “the only means possible”? I think not. It has not been interpreted in this way in the past. Necessary here does not mean that each individual act of targetting must be absolutely essential to achieving the goal set out by the resolution. In the past, all necessary means has simply been viewed as short hand for authorisation of the use of force. That expression has not been viewed as what imposes limitations on the scope of force but that limitation has instead been taken as flowing from the objective that the use of force is designed to achieve. So in Res. 678 dealing with Iraqi invasion of Kuwait, the limitation on the force was that the force was to remove Iraq from Kuwait and to restore international peace and security in the area. In Res. 1973, the limitation is that the use of force must be directed at protecting civilians and civilian populated areas under threat of attack.

There is a danger that the expression “all necessary means” will be interpreted in a sense as part of the jus in bello, i.e as part of the law that regulates individual targeting and the conduct of hostilities. Such an interpretation would suggest that each individual act of targeting needs to be justified as an act that is essential for achieving the broader objective. This has not been the previous practice, would be very limiting and would go beyond what international humanitarian law currently provides (unless one accepts the ICRC view in principle IX of its interpretive guidance on direct participation in hostilities see further discussion here). The limitations on force authorised by the UN Security Council should be thought of, instead, in terms similar to the jus ad bellum and in terms similar to what we have in the law of self defence. First of all, these limitations are directed, in general terms by reference to the overall levels of force used and not, usually, in connection with individual acts of targeting. Secondly, the key questions in this area are whether it is necessary to use force and whether the force used is proportionate in connection with achieving the objective specified by the resolution. With Security Council authorizations, whether force is necessary is essentially answered by the Security Council authorization. So here the question really is whether the force used is proportionate to achieving the goals set out by the resolution, i.e protecting civilians and civilian populated areas. But this is not IHL (jus in bello) proportionalitybut the sort of proportionality we think of when applying the law of self defence in the jus ad bellum: does the overall amount or direction of the force used go beyond what would be needed to achieve the goal? The difficulty here is that judging this is very difficult for those who do not have the military expertise or requisite information. One is bound to accord some discretion unless it can be shown that there was a lesser means available which was not taken.

17 Responses

What ‘all means necessary’ are necessary will depend on particular circumstances. Legally speaking, there should be some proximate connection between stopping the slaughter of civilians and the use of force to destroy the Libyan military causing the slaughter (the all means necessary). The removal of the ruler of Libya may not contribute to a future seize fire and may not prevent civilian casualties. Qadafi’s son could step in, or someone else. Based on the examples of Kosovo and Iraq, the removal of one state’s ruler does not stop civilian casualties and may not contribute to the seize fire. In the FRY, NATO focused on the destruction of the Serbian war making machine rather than trying to kill Slobodan Milosevic. Eventually, Slobodan Milosevic was the one who ordered the withdrawal of the Serb forces from Kosovo. In Iraq, Saddam Hussein was personally targeted and as the invasion started, the word went out that Saddam Hussein was killed (later proven incorrect). However, even after he was captured, civilian casualties mounted from terrorist attacks and military operations. As such, it seems that just going after the head of the government in Libya may not be within ‘all means necessary’ to stop the civilian casualties at the moment. Once the civil war ends and security is restored, most likely Qadafi having lost most of his international support, will face the ICC, and this may be within ‘all means necessary’ later.
The UNSCR 1973 seems to indicate that the humanitarian intervention, of sorts, finally reached the coast of Africa. As many recall, previously, former UN Secretary General Kofi Annan heavily criticized the UN for protecting civilians in Kosovo, but not on other continents, particularly in Africa. It may be a while before the humanitarian intervention reaches deeper into the continent. The resolution emphasized human rights, the responsibility to protect, and lists various regional organizations that oppose Qadafi’s actions in Libya against its population. It is also interesting that while in Kosovo, one of the reasons for the NATO’s intervention were alleged mass graves of tens of thousands killed (which proved later not entirely correct), here the resolution simply states that the attacks of the Libyan forces could amount to ‘crimes against humanity.’ It is also interesting that the resolution addresses potential claims that may arise later. While there may still be disagreement what ‘all means necessary’ means under particular circumstances, at the very least, the resolution seems to solidify the humanitarian intervention doctrine in certain, but not all, aspects.

It would be very interesting to expand a bit more about the usage of the term “civilians” in the 1973 UNSC Resolution.
Was it used generically or was it used according to IHL terminology?
And if it was used in IHL terms, does it exclude (as I think ordinary people would tend to think) what the ICRC Interpretive Guidance on DPIH called “fighters” or not?
Because before that document (and maybe even after) there are arguments to say that, if the situation in Libya is a NIAC, everyone who is not a member of the Libyan army is a civilian.
The last interpretation obviously would expand enormously the scope of the Resolution, the actions permitted by the Coalition and even the ultimate strategic goal of the whole enterprise there.
Thank you very much for your own views.

I agree with your analysis that the scope of the authorization to use all necessary means or measures (Resolution 1973 actually refers to all necessary measures rather than means) should be determined primarily by reference to the purpose of the authorization, which according to paragraph 4 of Resolution 1973 is to protect civilians and civilian populated areas under threat of attack. What is necessary and proportionate therefore must be evaluated against the threat of attack posed to those civilians and civilian areas.

However, this surely does not absolve the Member States acting upon the Security Council’s authorization from their obligations to comply with the law of armed conflict, including any proportionality requirements imposed upon them in launching attacks. Indeed, it would be strange for the Security Council to demand that the ‘the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law’ (para. 3), while authorizing members of the coalition to ignore their applicable obligations under international humanitarian law and human rights law. That said, under the law of armed conflict, whether or not Qadhafi may be targeted is first and foremost a question of whether he constitutes a military objective rather than a question of proportionality in attack.

On the question of targeting Qadhafi directly, I think it is wrong to interpret the scope of the authorization to use all necessary means or measures solely with regard to the express aims of the authorization, that is the protection of civilians and civilian populated areas under threat of attack. The aims of the authorization must be seen within the context of the other measures adopted by the Security Council in Resolutions 1970 and 1973. In those instruments, the Security Council addresses various demands to the Libyan authorities and specifies Qadhafi as one of the individuals subject to the travel ban and asset freeze imposed by those Resolutions. Of course, it may well be the case that individuals subject to these specific measures may qualify as military objectives under specific circumstances or that killing them incidentally may be consistent with the proportionality requirement in targeting (eg Qadhafi being killed inside a military command bunker). However, given that the Security Council has decided to adopt these concrete restrictive measures against these specific individuals, I think that it is at the very least questionable whether Member States acting upon the authorization contained in paragraph 4 of Resolution 1973 may go beyond these concrete restrictive measures and lawfully target Qadhafi as a matter of policy.

I have a question related to the ICC. A Belgian parliamentarian (not really a international lawyer I think) said this week that Resolution 1973 read together Resolution 1970 allows the Coalition forces to arrest Kadhafi and his deputies and to transfer him to the ICC. I don’t think this is correct, since Moreno-Ocampo didn’t issue any arrest warrants yet? However, if Ocampo has issued arrest warrants, as he plegded to do this soon, wouldn’t an arrest of Kadhafi by the coalition forces be the best and most civilised solution? And most of all, would this be legally correct under 1970 and 1973? Or would a new Security Council Resolution be necessary?

I think the term “civilian” in SC Res 1973 should be interpreted in accordance with the meaning under IHL. Also, though the situation in Libya is a non-international armed conflict (NIAC) that doesn’t mean that everyone who is not a member of the Libyan army is a civilian. Although one may quibble with the ICRC’s definition, in the Direct Participation Interpretive Guidance, of “civilians” in non-international armed conflict, the ICRC must be right that there is a category of civilian in NIACs which is different from the category of those who may be targeted. In other words, the IHL of non-international armed conflicts includes a category of non-civilians (call them whatever you wish) and that includes persons on both sides of the conflict.

However, I think the bigger point is that even if civilian means what it means in IHL, SC Res 1973 is not just about protecting civilians. It is also about preventing attacks on civilian populated areas – even if those attacks are directed at military objectives and fighters. So the coalition acts lawfully under the resolution by preventing Gaddafi’s forces from targeting rebels based in cities and towns. This is the real message of the resolution. It is about stopping Gaddafi’s from retaking towns and cities lost to the rebels as it is about protecting civilians.

I agree with you the SC Res does not free those states acting within the coalition from complying with the law of armed conflict. So you are of course right that whether Gaddafi can be targeted is also governed by whether under IHL he is to be seen as a combatant or legitimate military objective. I also agree that he is. In my analysis Iwas assuming that IHL would be complied with. What I wanted to address was whether there was a further restriction on such targeting which flows from the SC authorization itself.

I don’t agree though that the fact that the SC has imposed restrictive measures on particular individuals means that the authorization to use force is somehow to be read as somehow being more limited than it would be absent such restrictive measures. Neither of those Council measures restricts the other. The use of force operates on its terms and the sanctions on theirs. The sanctions are measures directly and explicitly targeted at particular persons. The use of force authorization is broad – in that it is not specifically directed. However, the authorization to use force permits the use of force against persons who are involved in planning or participating in attacks on civilians or civilian populated areas (subject to IHL constraints). It woudl be perverse to then say that because some individuals are subject to sanctions (because they are regarded as the leader of these operations), the Security Council Council has given them protection which others don’t have.

Your question – whether or not coalition forces can arrest and transfer Gaddafi – raises the issue of whether or not serving heads of State (which Gaddafi still is and is still recognised as – see post by Stefan Talmon here) are immune from arrest by foreign States when wanted by the ICC . This is an issue we’ve discussed on this blog a lot in relation to Sudanese President Bashir (just search the blog – on the right for “bashir”).

Perhaps the authorization to use all necessary measures can be regarded as including authorization to arrest and detain and thereby as removing any immunity that would otherwise exist. This is in keeping with the way in which US courts have interpreted the authorization to use force against al qaeda. That congressional resolution (statute?) has been taken as implicitly authorizing lesser means like detention.

I’m not convinced. There are good reasons why the different types of restrictive measures adopted by the Security Council should not be viewed in isolation. As a matter of interpretation, the individual provision of a Security Council resolution ought to be read in the context of the instrument as a whole. Determining the meaning of one provision solely by focusing on its terms whilst ignoring the rest of the text seems to contradict the basic principles of interpretation.

As a matter of the UN Charter, Chapter VII establishes a priority in the types of measures the Security Council may adopt once it has determine the existence of a threat to the peace, breach of the peace, or act of aggression under Article 39. Thus, measures involving the use of armed force are to be taken only where the Security Council has come to the conclusion that measure not involving the use of force would be inadequate or have proved to be inadequate. The adoption of non-forcible measures on a given question may well indicate that the Security Council has not considered it necessary or appropriate to adopt forcible measures on the same issue.

As a matter of policy, if the different types of restrictive measures are viewed in isolation and as not capable of qualifying each other, this would mean that all the different measures authorized by the Security Council could simply be subsumed under the single broadest measure authorized in a given resolution. So, in the present case, what’s the point of expressly authorizing a no-fly zone, given that a no-fly zone would seem to be implicit in the authorization to take all necessary measures to protect the civilian population?

None of this iis to suggest that the Security Council has given those individuals subject to specific sanctions greater protection than others. Should Qadhafi grab an AK-47 and start shooting civilians, he would expose himself to whatever measures are authorized under paragraph 4 of Resolution 1973 just like anyone else directly threatening or engaging civilians – never mind that he is also subject to a travel ban and an asset freeze. But that’s not the point. The question is whether Resolution 1973 authorizes the killing of Qadhafi not because he poses a direct threat to civilians, but because he is in control of those who do. In other words, does the authorization to use force cover only those who pose a direct threat to civilians or does it also extend to those with command responsibility.

My point is that in deciding this question, one should not ignore the fact that the Security Council has expressly adopted non-forcible measures only against Qadhafi. This may (and I’m saying ‘may’ here) suggest that, unless he poses a direct and concrete threat to civilians, using forces against Qadhafi’s person was not considered necessary by the Security Council at this point.

First of all, I don’t think the resolution can be interpreted as simply authorising force against those who pose “a direct and concrete threat”, if that phrase is taken as meaning those who are in the act of attacking civilians at that point in time. That interpretation would be even narrower than the interpretation of direct participation in hostilities – which does include persons in command of those who fight. The resolution authorises measures necessary to protect civilians and civilian populated areas under threat of attack. The point of my post was to say that all necessary measures is just shorthand (perhaps long hand) for use of force. However, if that phrase restricts the force to only those necessary then attacking command centres and indeed commanders is often necessary.

Secondly, since targeted sanctions are only directed at those in leadership positions it is difficult to see how your argument does not lead to the position that where force is authorised concurrently with sanctions, imposition of sanctions gives SOME immunity to leaders since the authorization to use force is limited, on your view, by the non-forcible measures.

I have one other question related to the ICC. If the rebels capture Khadafi, and this seems now more likely then one week ago, and they want to try him, how does will affect the investigation already ongoing by the ICC? Can there be a Libyan trial at all, since the Security Council referred the situation in Libya expressly to the ICC under resolution 1970. More theoretically, how does the complementarity regime work under article 13 ICC Statute?

Dapo made a critical observation when noting that the S.C. mandate is not to take “all necessary measures” to protect civilians and civilian areas from attack, but to take measures re: civilians and civilian areas “under threat of” attack. This is a much wider mandate than if the language had referred merely to those under actual attack.

P.S. this is an INTERNATIONAL armed conflict in so many ways. Whenever U.S. (and other state) military equipped for combat engage in armed hostilities in a foreign state, we should recognize that whatever armed conflict had been occuring has been internationalized (so that U.S. and other state military personnel can have “combatant” status and “combatant immunity” for lawful acts of warfare (and not be prosecuted, e.g., for murder) and pow status). I made this point in my drones article — http://ssrn.com/abstract=1520717
Also, NATO forces were targeting the armed forces of a state of Libya = int’l armed conflict. Moreover, the rebel National Council has been found by at least one state to be the de jure govt. of Libya = int’l armed conflict involving a belligerency between such govt. and the forces of the former govt..

Thank you Pr. Akande for this thoughtful assessement.
I have just a question: does the use of the word ”measures” (instead of means) in paragraph 4 imply any particular consequence?? Should it be interpreted as synonymous to ”means” and why the SC choses it??

Mr Akande, Thank you for your article I have found it difficult to access thoughtful commentary on this topic. I must also apologize as my following comments are made in the light of some weeks of change since you wrote your article but none the less I have two questions.

Your have spoken at length about UNSC Resolution 1973 providing authority for the protection of civilians and civilian areas. To date this seems to have exclusively meant action against Libyan Government Forces as they advance East and as they retake areas that had been occupied by TNC forces. But surely it must also apply to the TNC forces as they advance and attack Government Forces and the towns they occupy? As an add-on, your previous responses would also seem to make it an act against the Resolution for NATO to target Government Forces and Installations within civilians areas. In essence the could be a strong case to be made that in each civilian area the occupying force is that which is provided protection by NATO whether they be government or TNC.

Secondly there has been discussion on who exactly qualifies for the tag “civilian”. In light of the decisions of France, Italy and the UK to supply Military Advisers to train and organize the TNC forces and the decision of the US to supply non lethal military equipment in the form of uniforms, communications equipment and the like surely they are now clearly a military force and not civilians and as such outside the Resolutions protective cover. It might be true that these actions are downgrading the Resolution rather than achieving its aims.

I agree with you that para. 4 of Res 1973 in providing authorization to take all necessary measures to protect civilian populated areas under threat of attack in Libya, provides authorization to NATO to attack TNC or rebel forces attacking towns and cities under the control of Libyan government. However, given the fact that leading NATO countries have made it clear that they wish to see Gaddafi go and are now openly providing support to the rebels it is unlikely that NATO will actually do this.

You’re also right that the rebel forces are not civilians but that is why it is important that the resolution also provides authorization to prevent attacks on civilian populated areas, i.e NATO can attack Gaddafi’s forces even if the latter are not directly targeting civilians but are simply putting them in danger by attacking towns and cities.

About the Author(s)

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Fellow of Exeter College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict. Dapo is a member of the Editorial Board of the American Journal of International Law, an Emeritus Editor of the European Journal of International Law; and a member of the advisory board of several other journals. He is a Counsellor of the American Society of International Law, a Trustee of the British Institute of International and Comparative Law and a member of the Africa Group for Justice and Accountability. Read Full